This is a statutory contest of the will of R. T. Crowson, deceased, late of Callaway county, The will bears date March 2,1899, and the testator died on March 6, 1899, at the age of sixty-nine years. The will was admitted to probate by the probate court of Callaway county on March 9, 1899. The petition alleges, first, that at the time R. T. Crowson executed said will he was not possessed of sufficient mental capacity to make a valid will; and, second, that said pretended will was procured by undue influence of Minnie Crow-son, his wife, over the said R. T. Crowson.
The answers were general denials. The answers of all the defendants, except that of Minnie, were of their guardian ad litem, they being minors.
The issues were duly framed by the trial court and submitted to a jury resulting in a verdict that the paper in evidence was hot the will of R. T. Crowson. Defendants appeal.
The facts briefly stated are that R. T. Crowson was married twice, his first wife leaving at her death three sons, Eugene L., Jonathan (called “Doc.”) and Egbert. At the time of the death of their mother they were all minors, living with their father on his farm, where they remained until about the time they became respectively of age, or nearly so. The two younger ones, Doc and Egbert, worked their father’s farm a year or two after they became of age and received a part of the
For eight or ten years before his death R. T. Crow-son was troubled with smothering spells, supposed to be caused by heart trouble. These spells became more frequent the last year or two before his death. He had not been- able to perform any heavy manual labor for a number of years. Any violent exertion or any unusual occurrence would bring on the smothering spells, so that he would have to be fanned and have the doors and windows opened so as to get as much air as possible. During the winter prior to his death his health was worse than it had been; however, he continued to look after his stock, fed them and sheltered them himself until about a week before his death. He was troubled a good deal with his breathing on the eighteenth of February, and also on the twenty-fifth, and on up to the twenty-eighth, but most of that time he continued to look after and feed his stock, except on one or two days when his son, Doc, or a neighbor did that work for him. On Monday, February 27th, he was worse and seemed to have what his wife thought was
The will is very short and free from ambiguity. It disposes of all of the testator’s property in one clause which reads as follows:
‘ ‘ First, I will and bequeath to my wife all my real and personal property — after paying all my just debts —to be held in trust by her during her widowhood or lifetime for her support and the support and education of her children. If she marries again she is to have her lawful dower and the remainder is to be divided between my younger children, Edmond, Mary and Ruth,*700 except one dollar each to my older children, Engene L., Jonathan and Egbert. I hereby appoint my wife ns executrix to carry out this will.”
On the question of mental capacity there is some conflict in the evidence of the ‘ ‘ opinions ’ ’ expressed by the witnesses. Defendant contends that there was no evidence to support the verdict on mental incapacity to make the will.
While counsel for the contestees admit that on the question of mental capacity of the testator there is some conflict in the evidence of the “opinions” expressed by the witnesses, they contend that there was no evidence to support the verdict on mental capacity sufficient to make the will.
Upon this feature of the case John T. Beaven who wrote the will, signed it as an attesting witness and certified to it as such that at the time of its execution the testator was of sound mind and disposing memory, testified upon the trial as follows: “I didn’t think he was of sound mind ’ ’ at the time he made the will. ‘ ‘ He was very sick; suffering, breathing very hard and very rapid, and was very nervous and excited and didn’t seem to realize the difference between personal property and rer.l estate. I didn’t consider that he was at himself properly. He was not composed at all in mind. ’ ’.
This witness having attested the execution of the will was competent to give his opinion as to the condition of the testator’s mind at that time, but he gave no satisfactory reason for the change of his mind with respect to the condition of the testator’s mind at the time he certified that he was of “sound mind and disposing memory,” and at the trial, when he testified that he did not think he was of sound mind at the time he made the will. But the facts which occurred at the time of the execution of the will, including the provis-. ions of the will, show to the contrary, and that the testator not only knew what property he owned, what disposition he desired to make of it, all the persons who came reasonably within the range of his bounty, but that he
Other witnesses, offered by plaintiffs upon this feature of the case were as follows:
Dr. E. L. Crowson, a son, who saw deceased a few minutes after the will was written, says: “Father was very restless, nervous, excited and talkative. When we would rouse him up he would ask questions and answer questions — I should say semi-intelligently. If left for a few moments, he would sink into a kind of delirium and talk kind of delirious. Pulse, 130; respiration, 42; temperature, 99. I don’t think he was in a condition from the time I got there to transact ordinary business. I would say that any person in the condition in which I found him was not capable of transacting business matters.”
Dr. Gibbs, the attending physician, says that on Monday, deceased had had a hemorrhage; that he got there that mght at ten o’clock and stayed until eight o’clock next morning. “His respiration was excited, also his circulation, and he was excited — scared. Pulse 110; no fever. Thursday night, I got there just about twelve o’clock. He had weakened considerably. Temperature, 98; pulse, 112; respiration, 52 — normal being 18 to 24.”
Jonathan Crowson testifies that he was not in condition to transact business, that on Wednesday before the will was made “he was just as bad as he could be.”
Egbert Crowson says: “When I saw him [Thursday the day the will was made] I thought he was dying.”
John Guy, who stayed with deceased the mght of March 2, says: ‘ ‘ He was in bed. He didn’t talk much. Sometimes he would talk flighty.”
Thomas F. Crowson says: “Was at his house the day the will was written. Pound him a pretty sick man. He seemed to be very nervous and was picking at the bed clothes. I wouldn’t say that his mental capacity at that time to attend to ordinary business was very good.”
The only statements of these witnesses which have any bearing whatever upon this feature of the case aré to the effect that the testator “was not at the time of executing the will capable of transacting business matters.” These statements were mere opinions of non-experts without a single fact upon which to predicate them. There was no attempt by the testator to transact any business at that time other than to make his will, and his directions with respect thereto to Mr. Beaven who wrote it showed that he .had a clear perception of what he was doing, and what disposition he was making of his property. The expert testimony did not help the contestant’s case. Besides, a man may be capable of making a will and yet be incapable of making a contract or managing his estate. [Brinkman v. Rueggesick, 71 Mo. 556; Jackson v. Harding, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Crossan v. Crossan, 169 Mo. 631.]
We agree with counsel for the contestees that the burden was upon the contestants to show undue influence, coercion, or overpersuasion, or fraud and deceit, in the procurement of the execution of the will, and that such influence, to invalidate the will, must have so dominated the will of the testator at the time of its execution that the will was not in fact his own will, but that of his wife, Minnie Crowson. [McFadin v. Catron,
It is said in Thompson v. Ish, 99 Mo. 160, that “the influence of a wife or child upon a testator, while the later has power to deliberate and estimate the inducements, will not avoid the will, if the influence is exerted in a fair and reasonable manner, and without fraud or deception. The influence of one occupying such relation to the testator, to avoid the will, must be such as to overreach and destroy the free agency and will power of the testator.” There is no evidence of fraud or deception practiced upon the testator; and in view of the fact that there is no such evidence, the will ought not to be set aside for undue influence of the wife, in the absence of evidence showing that, considering the state of the mind of the testator, the influence was not of such a character as to destroy the free agency of the testator, and make it her will and not his. [Myers v. Hauger, 98 Mo. 433; Campbell v. Carlisle, 162 Mo. 634.]
Our conclusion is that there is no substantial evidence to support the verdict. We therefore reverse the judgment without remanding the cause.